NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 2, 2012*
Decided July 6, 2012
Before
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐1011
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District
of Wisconsin
v.
No. 1:03‐cr‐261‐WCG
DEXTER ANDERSON,
Defendant‐Appellant. William C. Griesbach,
Judge.
O R D E R
Defendant Dexter Anderson appeals from the district court’s denial of his petition
for a reduced sentence under
18 U.S.C. § 3582(c)(2) based on the Sentencing Commission’s
retroactive amendment of crack cocaine Sentencing Guidelines. We affirm because the
*
This successive appeal has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that oral
argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 12‐1011 Page 2
district court correctly found that it was not legally authorized to reduce Anderson’s
sentence.
In 2004, defendant Anderson was found guilty by a jury of several crack cocaine and
firearm charges. Under the Sentencing Guidelines then in effect, his offense level was 44
and his criminal history was III. The Guidelines called for a life sentence, but Anderson did
not receive a guideline sentence. He was sentenced after the Supreme Court had decided
Blakely v. Washington,
542 U.S. 296 (2004), which was understood by this court to call into
question the constitutionality of the then‐binding federal Sentencing Guidelines, see United
States v. Booker,
375 F.3d 508 (7th Cir. 2004), but before the Supreme Court had affirmed that
decision and held that the Constitution requires that the federal Guidelines be treated as
advisory in United States v. Booker,
543 U.S. 220 (2005). Faced with this uncertainty, Judge
Griesbach correctly anticipated that he should treat the Guidelines as advisory, and he
decided not to impose the life sentence called for by the Guidelines. He instead imposed
a sentence of 300 months (25 years) based on his consideration of the relevant sentencing
factors under
18 U.S.C. § 3553(a). We affirmed Anderson’s conviction in a direct appeal in
which neither side challenged the below‐guideline sentence. United States v. Anderson,
450 F.3d 294 (7th Cir. 2006).
In 2007, the Sentencing Commission issued its Amendments 706 and 713 to reduce
the sentencing ranges for crack cocaine offenses and to make those changes applicable
retroactively so that a prisoner in Anderson’s position could apply for a reduced sentence
under
18 U.S.C. § 3582(c)(2). Anderson applied for such relief, and the district court denied
his petition. At that time, § 1B1.10(b) allowed a district court to grant relief if it had
originally imposed a below‐guideline sentence, but such reductions were discouraged if
the original sentence was a non‐guideline sentence pursuant to Booker and § 3553(a). See
U.S.S.G. § 1B1.10(b)(2)(B) (2008). The district court explained that Anderson’s original
below‐guideline sentence had already taken into account the discrepancy between
sentences for crack and powder cocaine, and that an even lower sentence (closer to the
applicable 20‐year mandatory minimum sentence) would require the court to overlook
Anderson’s dangerous and violent actions during and after his arrest. Anderson appealed
and we affirmed, finding no abuse of discretion.
365 Fed. Appx. 17 (7th Cir. 2010).
In 2011, the Sentencing Commission adopted Amendments 750 and 759, both
effective November 1, 2011. Amendment 750 made further retroactive reductions to the
crack cocaine Guidelines, while Amendment 759 limited the availability of relief for
prisoners who received below‐guideline sentences in the first place. Anderson again
petitioned for relief under § 3582(c)(2), and the district court again denied relief. Anderson
appeals this latest denial.
No. 12‐1011 Page 3
Because the district court concluded it did not have legal authority to grant relief,
the court did not exercise any discretion. We review de novo such a determination about
the extent of the court’s legal authority under § 3582(c)(2). United States v. Johnson,
571 F.3d
716, 717 (7th Cir. 2009); accord, United States v. Fanfan,
558 F.3d 105, 106 (1st Cir. 2009);
United States v. Melvin,
556 F.3d 1190, 1191 (11th Cir. 2009).
Section 1B1.10(b)(2)(A) imposes a limit on sentence reductions under § 3582(c)(2):
Except as provided in subdivision (B), the court shall not reduce the defendant’s
term of imprisonment under
18 U.S.C. § 3582(c)(2) and this policy statement to a
term that is less than the minimum of the amended guideline range determined
under subdivision (1) of this subsection.
Amendment 759 amended the referenced subdivision (B) to narrow the relief available.
Now a defendants whose original sentence was below the new Guideline range is eligible
for relief only if his original sentence was based on a downward departure based on
substantial assistance to the government. See U.S.S.G. § 1B1.10(b)(2)(B) (2011). That
exception does not apply to Anderson. The district court correctly applied the amended
version of § 1B1.10(b) and concluded that Anderson was not eligible for relief. See also
Dillon v. United States,
130 S. Ct. 2683, 2691‐92 (2010) (§ 1B1.10 is binding on requests for
relief under § 3582(c)(2)).
To avoid this result, Anderson argues that Dillon is not controlling and that
§ 1B1.10(b)(2) should not be treated as binding, at least in his case, because the district court
never treated the Guidelines as binding, even in his original sentencing. “To somehow treat
the guidelines as non‐binding in one venue and binding in the next venue is a clear abuse
of discretion.” App. Br. 8. Despite any superficial appeal this argument might have, it is
wrong. Anderson’s original sentence of 25 years remains final unless and until a lower
sentence is authorized by law. Section 3582(c)(2) provides the only potential legal authority
for lowering his sentence. It provides that in the case of retroactive reductions of
Sentencing Guidelines, a court may reduce a defendant’s sentence of imprisonment “if such
a reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” In other words, the only statutory authority for reducing Anderson’s
sentence delegates to the Sentencing Commission the power to impose limits on such
reductions. With Amendment 759, which took effect November 1, 2011, the Commission
imposed just such a limit in § 1B1.10(b)(2)(B). That limit does not violate Anderson’s
constitutional rights. See Dillon,
130 S. Ct. at 2693 (holding that limits of § 1B1.10 were both
binding and constitutional when relief was sought under § 3582(c)(2)).
No. 12‐1011 Page 4
Finally, Anderson argues that the district court made a mistake in calculating the
Guidelines for his original sentence. Anderson received a two‐level enhancement under
§ 2D1.1(b)(1) for possession of a dangerous weapon because there were two handguns in
his home along with the drugs when he was arrested. He received an additional two‐level
enhancement under § 3C1.2 for reckless endangerment during flight. While Anderson was
handcuffed during execution of a search warrant, he ran from the home and managed to
retrieve one of the handguns. Police officers subdued him and gained control of the
firearm. Anderson contends this was improper double‐counting according to § 3C1.2 and
its Application Note 1. His theory now is that if two levels were removed, his newly
amended Guideline range would be 292 to 365 months. Under this theory, the district
court would have had legal authority to reduce his sentence by eight months, from 300
months to 292 months, the bottom of the amended range.
This argument also fails. Under § 3582(c)(2) and § 1B1.10(b)(1), the district court is
not authorized to revisit Guideline issues not affected by the applicable amendment, as the
Supreme Court held in Dillon.
130 S. Ct. at 2694 (affirming denial of relief based on
correcting other Guideline calculations). Although we very much doubt that the district
court double‐counted (there is a big difference between merely having a gun present in the
house and fleeing while handcuffed to retrieve a gun that could be used to attack police
officers), the double‐counting issue can no longer be raised.
AFFIRMED.
